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breakdown_dismissal_letter [2018/12/06 22:59] – Carlos Pedraza | breakdown_dismissal_letter [2019/09/20 12:38] (current) – [Unprotected Elements] Carlos Pedraza | ||
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- | <fs smaller> | + | <fs smaller> |
- | ====== Breaking Down the Case for Dismissing the Tardigrades Suit ====== | + | <fs x-small> |
- | //**CBS Lawyer | + | ====== The Case For and Against Dismissing the Tardigrades Suit ====== |
+ | |||
+ | //**Plaintiff Replies to Flaws Found by CBS Lawyer in Copyright Infringement Case Against Star Trek: Discovery**// | ||
{{TOC}} | {{TOC}} | ||
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Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, | Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, | ||
- | In a December 3, 2018, letter to U.S. District Court [[Judge Naomi Reice Buchwald]], attorney Wook Hwang spelled out precisely why he believed the case shouldn' | + | In a December 3, 2018, letter to the U.S. District Court judge in the case, attorney Wook Hwang spelled out precisely why he believed the case shouldn' |
+ | |||
+ | For his part, Abdin replied through his lawyers, [[tardigrade_lawsuit_trouble# | ||
+ | |||
+ | <WRAP right round important 320px> | ||
+ | <wrap em> | ||
+ | <fs smaller> | ||
+ | </ | ||
<WRAP center 95%> | <WRAP center 95%> | ||
- | <fs smaller> | + | <fs smaller> |
</ | </ | ||
- | ===== Substantially Similar? | + | ===== Conference Scheduled |
- | <WRAP right round important 50%> | + | U.S. District Judge Lorna G. Schofield scheduled a pre-motion conference regarding the defense' |
- | <wrap em>Plaintiff' | + | |
- | <fs smaller>Lawyers for Anas Abdin submitted | + | ===== 'In the Plaintiff' |
- | </WRAP> | + | |
+ | Abdin' | ||
+ | |||
+ | > In considering | ||
+ | |||
+ | However, Hwang' | ||
+ | |||
+ | ===== Substantially Similar? ===== | ||
- | At the heart of CBS/ | + | At the heart of CBS/ |
- | <WRAP right round info 50%> | + | <WRAP right round info 320px> |
[{{: | [{{: | ||
<wrap lo> | <wrap lo> | ||
- | <wrap indent> | + | <wrap indent> |
\\ | \\ | ||
<wrap indent> | <wrap indent> | ||
- | Moreover, the audience test "asks whether the defendant wrongly copied enough of the plaintiff’s protected expression to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others." | + | Moreover, the audience test "asks whether the defendant wrongly copied enough of the plaintiff’s protected expression to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others." |
</ | </ | ||
+ | |||
+ | Abdin' | ||
+ | |||
+ | Of course, many of those commenters, possibly predisposed to advocating for independent videogame developers, do not understand copyright, particularly its not protecting ideas, only expressions of ideas. Hwang cited the 2010 case, //Peter F. Gaito Architecture, | ||
+ | |||
+ | Furthermore, | ||
==== Four Remedies for Infringement ==== | ==== Four Remedies for Infringement ==== | ||
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* Attorneys' | * Attorneys' | ||
</ | </ | ||
+ | |||
+ | In their reply Abdin' | ||
==== Other Copyright Violations ==== | ==== Other Copyright Violations ==== | ||
- | According to Hwang, Abdin' | + | According to Hwang, Abdin' |
==== Unprotected Elements ==== | ==== Unprotected Elements ==== | ||
Line 62: | Line 86: | ||
//**__CBS attorney Wook Hwang criticized Anas Abdin’s 'bare and speculative allegations' | //**__CBS attorney Wook Hwang criticized Anas Abdin’s 'bare and speculative allegations' | ||
</ | </ | ||
+ | |||
+ | In their reply, Abdin' | ||
+ | |||
+ | Abdin' | ||
+ | |||
+ | In a claim echoed throughout the letter, Abdin' | ||
+ | |||
+ | However, Hwang' | ||
+ | |||
+ | [{{ :: | ||
=== Human Domino === | === Human Domino === | ||
- | Abdin' | + | Furthermore, |
- | === Trek Tardigrades Predate Videogame === | + | Abdin' |
+ | |||
+ | > The court in //Ollie// held that the two figures were wholly different … " | ||
+ | |||
+ | {{anchor: | ||
+ | That last sentence, however, is precisely how Hwang cited the //Ollie// case. | ||
+ | ---- | ||
+ | < | ||
+ | //**__« It’s as if the plaintiff’s original work was used as a storyboard for the development of // | ||
+ | </ | ||
Furthermore, | Furthermore, | ||
- | === Generic Similarities === | + | That article, however, only attached the idea of tardigrades to Star Trek, according to Abdin' |
+ | |||
+ | === 'Generic' | ||
Having dispensed with the tardigrade' | Having dispensed with the tardigrade' | ||
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Since the legal complaint provided no other means by which CBS/Netflix could determine what other materials posted on those sites might have been infringed upon, Hwang said Abdin did not satisfy " | Since the legal complaint provided no other means by which CBS/Netflix could determine what other materials posted on those sites might have been infringed upon, Hwang said Abdin did not satisfy " | ||
+ | |||
+ | Abdin' | ||
==== No Proof of Access ==== | ==== No Proof of Access ==== | ||
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Crucially, Hwang noted, Abdin failed to demonstrate // | Crucially, Hwang noted, Abdin failed to demonstrate // | ||
- | Hwang criticized Abdin' | + | Hwang criticized Abdin' |
- | Instead, Abdin offers no such chain of events or link between his game and // | + | Instead, Abdin offers no such chain of events or link between his game and // |
+ | However, "the defendants' | ||
+ | |||
+ | However, neither Abdin' | ||
+ | |||
+ | <WRAP right round info 320px> | ||
+ | <fs smaller> | ||
+ | </ | ||
==== Late Copyright Registration ==== | ==== Late Copyright Registration ==== | ||
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"Even where the alleged infringement begins before registration and continues after registration, | "Even where the alleged infringement begins before registration and continues after registration, | ||
- | ==== Not Covered Under Berne Convention, Visual Artists' | + | Abdin' |
+ | |||
+ | If Hwang' | ||
+ | |||
+ | === Not Covered Under Berne Convention, Visual Artists' | ||
- | Abdin' | + | Abdin' |
Hwang dispensed with both these claims by arguing: | Hwang dispensed with both these claims by arguing: | ||
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* VARA offers no protection to the Tardigrades game, which fails to meet the legal definition of "works of visual art — a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer.”((Carter v. Helmsley-Spear, | * VARA offers no protection to the Tardigrades game, which fails to meet the legal definition of "works of visual art — a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer.”((Carter v. Helmsley-Spear, | ||
</ | </ | ||
+ | |||
+ | While Abdin' | ||
+ | |||
+ | However, VARA does not protect //all// forms of visual art, only very specific kinds, as noted in "A Guide to the Visual Artists Rights Act": | ||
+ | |||
+ | > VARA covers only <wrap hi> | ||
+ | |||
+ | Abdin' | ||
[{{ : | [{{ : | ||
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> The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., // | > The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., // | ||
- | ===== Answer Due ===== | + | While that principle is well established, |
- | Abdin' | + | <WRAP tip 75%> |
+ | <wrap em> | ||
+ | Discuss this article in [[face> | ||
+ | </WRAP> | ||
+ | ---- | ||
+ | **Keywords** | ||
+ | {{tag> |